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There is considerable debate over how or whether hate speech can be defined; whether speech thus labeled ought to be regulated; and if so, how and by whom. Many courts cannot even decide the definition of hate speech. The aforementioned debates center on three critical questions: First, what is the force of speech? Is it the expression of personal thoughts, or is it a form of action that affects and can harm others? Second, is the free expression of ideas which some perceive as hateful necessary for healthy public debate, or is it harmful to public debate? Third, should governmentalpolicies be founded upon the protection of interests and rights of individuals, or identifiable groups, such as homosexuals and racial minorities?

In the United States, government is broadly forbidden by the First Amendment of the Constitution from restricting speech. Jurists generally understand this to mean that the government cannot regulate the content of speech, but that it can sanction the harmful effects of speech through laws such as those against defamation or incitement to riot.

Indeed, the term "hate speech" and its surrounding discussion (whether and to what extent speech should be regulated) is something restricted to American legal discourse. For example, the German constitution is subtly more restrictive, guaranteeing 'freedom of voicing one's opinion' and elsewhere restricts its misuse against the public peace. The German Criminal Code specifically forbids inciting hatred against ethnic groups.

Since such laws often apply only to the victimization of specific individuals, some argue that hate speech must be regulated to protect members of groups. Others argue that hate speech limits the free development of political discourse and ought to be regulated, but by voluntaristic communities and not by the state. Still others claim that it is not possible to legislate a boundary between legitimate controversial speech and hate speech in such a way which is just to those with controversial political or social views.

Various institutions in the United States and Europe began developing codes to limit or punish hate speech in the 1990s, on the grounds that such speech amounts to discrimination. Thus, such codes prohibit words or phrases deemed to express, either deliberately or unknowingly, hatred or contempt towards a group of people, based on areas such as their ethnic, cultural, religious or sexual identity, or with reference to physical or mental health.

It may also in some contexts challenge the rights of individuals based on any or all of the above criteria.

In addition to legal prohibition in many jurisdictions, prohibition of the use of hate speech has been written into the bylaws of some governmental and non-governmental institutions such as public universities, trade unions and other organizations (see below), though the use of speech codes in public universities in the United States is blatantly illegal. Its use is also frowned upon by many publishing houses, broadcasting organizations and newspaper groups.

In many countries, deliberate use of hate speech is a criminal offence prohibited under incitement to hatred legislation. Such prohibitions have parallels with earlier prohibitions on such issues as obscenity and blasphemy, which are or were also prosecutable offences.

In Canada, advocating genocide or inciting hatred against any 'identifiable group' is an indictable offense under the Canadian Criminal Code with maximum terms of two to fourteen years. An 'identifiable group' is defined as 'any section of the public distinguished by colour, race, religion, ethnic origin or sexual orientation.' It makes exceptions for cases of statements of truth, and subjects of public debate and religious doctrine.

Proponents of limitations on hate speech argue that repeated instances of hate speech do more than express ideas or expresses dissent; rather, hate speech often promotes and results in fear, intimidation and harassment of individuals, and may result in murder and even genocide of those it is targeted against. As such, historical revisionism is thought to be a form of propaganda which, deleting memory of real events, allows them to repeat themselves (as in the: "Never more!", following World War I... and then the Holocaust).

According to Richard Delgado, it is possible to identify hate speech on the use of certains key-words, arguing that "Words such as 'nigger' and 'spick' are badges of degradation even when used between friends: these words have no other connotation." Therefore, the act of calling someone a name should be censored if the name used belongs to a previously-identified hate speech. However, Judith Butler (1997) claims that "this very statement, whether written in his text or cited here, has another connotation; he has just used the word in a significantly different way." (Butler considers that "mentioning" a word is an effective "use" of the word in another context) [1] On this basis, Butler claims that words do not have an absolute meaning, but one that depends on the context. She thus underlines the difficulty of identifying a hate-speech. Ultimately, the state itself defines the limits of acceptable discourse, according to her. However, Butler takes the precaution to explicitly deny being against all forms of limitation of discourse, the object of her book being only to point out the different issues at stake when one address the problem of hate speech and censorship.

There are a number of arguments suggested against the prohibition of hate speech:

Prohibiting hate speech interferes with the right of free expression and free discussion of opinions, a key right in modern democracies, particularly in the media. (The United States constitution expressly protects freedom of the press.) This argument from freedom is formally described by John Stuart Mill in On Liberty.

Hate speech restrictions are attempts to control not only the relevant speech actions, but the thoughts of individuals, and are thus an attempt to create a kind of thoughtcrime. Some believe governments may be currently enforcing laws that implement a de facto thoughtcrime regime.

Even if used, hate speech does not necessarily lead to actions, and that where actions are carried out, the speaker of those words cannot be held responsible for the actions of others. Critics of this position hold that position depends on denying what they argue as historical truths (i.e. that hate speech in practice sometimes is used to incite murder and genocide).

Prohibiting hate speech does nothing to change the ideas that give rise to the opinions behind the "offensive" terms. On this view, it is agreed that hate speech may be dangerous and should not exist, but suggested that we should not attempt to end it by legislative action, as opposed to debate and discussion.

In some cases it is held that prohibiting hate speech is part of a campaign of political correctness intended to censor any expression of certain ideas, even if there is no accompanying incitement to hatred or criminal action.

A central aspect of the hate speech debate is that concepts of what is acceptable and unacceptable differ, depending on eras in history and one's cultural and religious background. For example, personalised criticism of homosexuality and the belief that it is "immoral", based on a person's religious beliefs, are to some a valid expression of their values, to others an expression of homophobia and are therefore homophobic hate speech. Prohibition in such cases is seen by some as an interference in their rights to express their beliefs. To others, these expressions generate harmful attitudes that potentially cause discrimination.

Furthermore, words which once "embodied" negative hate speech connotations, such as 'queer' or 'faggot' against homosexuals, 'nigger' against people of African origin, have themselves been "reclaimed" by their respective communities, who attached more positive meanings to the words, so undermining their value to those who wish to use them in a negative sense. Significations differ following the context, as Judith Butler argues.

Concepts of what qualifies as hate speech broadened in the late twentieth century include some views expressed from an ideological standpoint. For instance, some feminists refer to jokes about women or lesbians as hate speech. Just recently in Canada sexual orientation was added to the list of relevant characteristics for protection from hate-speech. Not everyone accepts that there is a comparison between classic forms of hate speech, which were incitement to hate or even physically harm, and the use of language that arguably just shows disrespect. Some discussions between politically right wing and left wing can be viewed as hateful, even though the language indulged in by both sides is not normally classified as hate speech. However, some argue that such comments demean and undermine the individuals and so should qualify as hate speech.

Attitudes towards controlling hate speech cannot be reliably correlated with the traditional political spectrum. In the United States, there is a general consensus that free speech values take precedence over limiting the harm caused by verbal insult. At the same time, many conservatives believe verbally expressed "discrimination" against religions, such as blasphemy, should be condemned, while liberals feel the same way about verbal "discrimination" against identity-related personal characteristics, such as homosexuality.

Some United States universities have speech codes that prohibit hate speech. These rules are intended to ensure an atmosphere free from harassment and intimidation, conducive to a learning environment. Many speakers have opposed such speech codes, claiming they constitute a new orthodoxy of political correctness that represents an erosion of the American commitment to freedom of speech, and-- when implemented in government-funded institutions-- the First Amendment to the United States Constitution.

Some observers believe that speech codes are often used by school administrators to enforce thought conformity and that the accusation of hate speech is often made to suppress points of view that are unfavorable to certain "protected groups", which represents a significant infringement of the tradition of academic freedom and gives members of these groups an unfair advantage in the marketplace of ideas. Opponents counter that hate speech in fact protects all groups, its simply that hate speech against certain groups, for example, heterosexuals is rare.

For example, for a college professor to say, "Lesbians should not be schoolteachers," could be considered hate speech. The professor could be denied tenure, even if he were expressing his religiously-based belief that homosexuals should not be put in positions where they can influence young people. Underlying such a claim is the belief that homosexuals in positions of influence over young people might influence their sexuality. Opponents would argue that the underlying theory behind the words suggests a false understanding of the nature of human sexuality with their usage designed to promote fear of homosexuals and their supposed influence on children among non-homosexuals, so leading to hatred of, and discrimination against, homosexuals.

He could offer the defense that he doesn't hate lesbians and didn't intend to hurt anyone's feelings, but was expressing his genuinely held beliefs based on religious convictions. In such circumstances, the consequences of his comment could lead to his facing disciplinary action. Some would judge such actions as an unfair restriction on his beliefs and freedom of expression. Others would see it as upholding the principle of attacking discrimination and hatred.